Willoughby City Council v Attorney General of NSW [2016] NSWSC 972

Supreme Court New South Wales

Medium Neutral Citation: Willoughby City Council v Attorney General of NSW [2016] NSWSC 972 Hearing dates: 13 July 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Jurisdiction: Equity Before: Hallen J Decision: (1) Declares that the compensation funds awarded to the Plaintiff in Land and Environment Court NSW, Proceedings 30990/11, in respect of the land identified as Site 1 and Site 2, the subject of the current proceedings, are impressed with a charitable trust.

(2) Declares that, in the circumstances, the original purpose for which the trust was laid down has, in part, ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust.

(3) Orders that the cy-près scheme set out in the Cy-Près Declaration of Trust, a copy of which is marked Ex. A in the current proceedings, be approved.

(4) Orders that the costs of each of the Plaintiff and of the Defendant, respectively, calculated on the indemnity basis, be paid out of compensation funds awarded. Catchwords: EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered. Legislation Cited: Charitable Trusts Act 1993 (NSW) Cases Cited: Attorney-General (NSW) v Fulham [2002] NSWSC 629 Brisbane City Council v Attorney-General (Qld) [1979] AC 411 Burnside v Attorney-General (1993) 61 SASR 107 Hunter Region SLSA Helicopter Rescue Service Ltd v Attorney General of New South Wales (2013) NSWSC 1749 Roads and Maritime Services v Rockdale City Council [2015] NSWSC 1844 Special Commissioners of Income Tax v Pemsel [1891] AC 531 The Trustees of The Kean Memorial Trust Fund v The Attorney-General For SA [2003] SASC 227 Category: Principal judgment Parties: Willoughby City Council (Plaintiff) Attorney General of NSW (Defendant) Representation: Counsel: Mr DAC Robertson (Plaintiff) Mr C Mantziaris (Defendant)